A migrant worker who was on a "grossly excessive" 70-hour week at a takeaway for well under the minimum wage has been awarded over €23,000 in compensation for multiple breaches of his employment rights.
The Workplace Relations Commission (WRC) concluded Suman Bhurtel had been earning an average hourly wage of just €8.24 while working for Chicken Castle Ltd at the Chicken Club takeaway in Castleisland, Co Kerry between February 2023 and February 2024.
It was €6.52 less than the hourly wages set out in his contract and more than €3 under the €11.30-an-hour minimum wage in force at the time.
In a decision published today the tribunal ruled Chicken Castle Ltd was in breach of the Organisation of Working Time Act 1997 on foot of five complaints by Mr Bhurtel, as well as a sixth complaint under the National Minimum Wage Act 2000.
Mr Bhurtel, who is Nepalese and was represented by the Migrant Rights Centre of Ireland (MRCI) before the tribunal at a hearing last month, had worked at the restaurant since October 2020, receiving an annual salary of €30,000, the tribunal heard.
The complainant had kept his own records of his working hours, which were submitted in evidence to the tribunal by the MRCI. It was the norm for him to work seven days a week and he rarely had a day off, he said in evidence.
The tribunal noted that the employer had failed to respond to Mr Bhurtel's request for a statement of his average working hours when he requested it under the minimum wage legislation and offered "no credible evidence" at the hearing on what the hours of work had been.
Mr Bhurtel explained that he was entirely dependent on his employer for his visa status and accommodation - and that because he was also engaged in a family reunification process, he was "further tied" to the employer.
Satwinder Singh, the company secretary, denied Mr Bhurtel worked 70 hours a week and maintained he worked 39 hours, according to his contract. He told the tribunal the worker was never scheduled to work Sundays or public holidays and said he had paid Mr Bhurtel in cash for annual leave.
Adjudicator Úna Glazier-Farmer noted that the complainant "lived and worked in a rural area during the Covid-19 pandemic" and that there had been a "significant shortage of housing".
The adjudicator concluded the employer "took advantage" of Mr Bhurtel’s situation of "total dependency" on his employer in respect of his accommodation and visa status.
She concluded that this was reasonable cause to extend her jurisdiction in the matter beyond the usual six-month limit to 12 months, giving her the power to compensate Mr Bhurtel for 22 weeks and four days between 22 February 2023 and the end of his employment on 15 August that year.
Ms Glazier-Farmer said Mr Bhurtel gave "credible evidence of excessive working hours" and accepted the records of working time retained by him in their entirety.
Addressing the minimum wage complaint, Ms Glazier-Farmer found that in light of the "grossly excessive hours" worked by the complainant she could not find the €30,000 a year salary was "sufficient" to meet the minimum wage.
She awarded him €3,244.50 for the difference between his actual average pay and the National Minimum Wage over the period in her jurisdiction, and a further €1,000 in respect of the complainant’s expenses in bringing the complaint.
Ms Glazier-Farmer made a further award under the Organisation of Working Time Act of €5,496.75, reflecting the difference between the minimum wage of €11.30 and "the contractual rate of €14.79 which he ought to have been paid".
She also directed the firm to pay €13,389.69 for three further breaches of the working time legislation pertaining to the failure to provide for a weekly rest period, annual leave and a Sunday premium.
The total sum awarded in the matter was €23,130.94.
Commenting on the decision, MRCI co-director Neil Bruton said: "It's not a surprise that people from outside the EU with employment permits continue to face this type of exploitation. It is very challenging for people on permits to change jobs. Employers know this, which makes it very hard for workers to stand up for their rights."
He said the MRCI’s view was that for workers to spend five years in the employment permit system for five years before gaining the freedom to work without one was "far too long". He said the MRCI was calling for a reduction of that period to two years.
"We commend the courage of Mr Bhurtel in coming forward in a very difficult circumstances and raising his complaint. It’s not an easy thing to do. We hope that the award in his favour will encourage others in similar situations to come forward and stand up against exploitation," Mr Bruton added.
